CAAFlog » Military Justice Legislation

A reader called my attention to military justice provisions in the House Armed Services Committee’s markup of the National Defense Authorization Act for Fiscal Year 2019 (H.R. 5515). The Committee’s report (dated today) is available here. The legislation as sent to the full House is available here. An excerpt containing just the military justice provisions (Title V, Subtitle D) in Word format is available here.

The legislation includes six military justice provisions:

Sec. 531. Minimum confinement period required for conviction of certain sex-related offenses committed by members of the Armed Forces.

Sec. 532. Punitive article in the Uniform Code of Military Justice on domestic violence.

Sec. 533. Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces.

Sec. 534. Modification of Military Rules of Evidence to exclude admissibility of general military character toward probability of innocence in any offense not strictly related to performance of military duties.

Sec. 535. Improved crime reporting.

Sec. 536. Oversight of registered sex offender management program.

Two of these proposals are particularly bad.

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§ 5542(b) of the Military Justice Act of 2016 requires the President to “prescribe regulations implementing [the MJA] not later than one year after the date of the enactment of this Act.”

That date was yesterday.

To my knowledge, President Trump has not signed an executive order implementing the proposed changes to the Manual for Courts-Martial.

Assuming President Trump has not acted, this is the second administration in a row to be significantly tardy in military justice matters. During the Obama administration, we waited more than four years for regulations implementing the 2012 version for Article 120, and we never got an update to Mil. R. Evid. 413 to resolve constitutional problems identified in 2011 (though President Obama was quite diligent about making prosecution-friendly changes to the MCM).

President Trump signed the National Defense Authorization Act for FY18, Pub. L. No. 115-91, last week. The legislation includes nine sections with military justice provisions.

A bookmarked PDF of the military justice provisions is available here.

Here are the most significant provisions (based on my initial review), in the order in which they appear in the legislation:

Section 531(a) amends Article 6b(e)(3) to add a reference to CAAF review of an alleged victim’s Article 6b petition, giving CAAF jurisdiction over such petitions and thereby reversing the court’s decision in Randolph v. HV and United States, 76 M.J. 27 (C.A.A.F. Feb. 2, 2017) (CAAFlog case page).

Section 531(n)(1) allows the President to prescribe regulations applying the changes in the Military Justice Act of 2016 to offenses alleged to have been committed before the effective date of the changes.  Section 531(o), however, provides that sentencing in cases involving pre- and post-MJA cases will use the pre-MJA sentencing rules unless the accused requests post-MJA sentencing (and presumably this could occur as part of a plea agreement).

Section 531(n)(2) makes the new 10-year statute of limitations of child abuse offenses in Section 5225 of the MJA (amending Article 43(b)(2)(A)) retroactive to the date of enactment of the MJA (December 22, 2016), regardless of the effective date of the rest of the MJA.

Section 532 authorizes the use of “civilian employees . . . experienced in the prosecution or defense of complex criminal cases to provide assistance to, and consult with, less experienced judge advocates throughout the court-martial process,” thereby allowing the services to outsource a core competency of the judge advocate communities.

Section 533 creates a new Article 117a prohibiting the wrongful broadcast or distribution of intimate visual images. The new Article is similar to the provision enacted by the House in May (discussed here), avoids the serious flaws in Article 1168, U.S. Navy Regulations (analyzed here), and includes as an element of the offense that the accused’s “conduct, under the circumstances, had a reasonably direct and palpable connection to a military mission or military environment.”

Section 1081(c) makes technical and clerical corrections to the MJA. Among these, Section 1081(c)(1)(H) corrects the new Article 53a(d) to make plea agreements binding on members (an error I noted in my public comment on the proposed MCM changes implementing the Military Justice Act of 2016).

The DoD has formally published the proposed changes to the MCM necessary to implement the Military Justice Act of 2016 (previously discussed here).

The Federal Register notice is available here.

The Regulations.gov folder is available here.

The Regulations.gov folder includes a single, 636-page PDF titled Annex 1 & 2. Annex 1 is proposed revisions to the current MCM to take effect immediately upon promulgation by the President. Annex 2 is proposed revisions to take effect with the changes made by the MJA (anticipated to occur on January 1, 2019).

The Joint Service Committee is accepting public comments (including electronically at the Regulations.gov link above) and will hold a public meeting in August:

Comments on the proposed changes must be received no later than September 11, 2017. A public meeting for comments will be held on August 3, 2017, from 10 a.m. until noon, in the United States Court of Appeals for the Armed Forces building, 450 E Street, NW., Washington, DC 20442-0001. Commentators will be heard in order of arrival and check-in, and will be limited to five minutes.

I plan to both comment and attend the public meeting.

The Federal Register notice includes a request for comment on a specific proposed change to R.C.M. 1103A:

The Department of Defense also requests comments on a proposal by a Federal Advisory Committee, the Judicial Proceedings Since Fiscal Year 2012 Amendments Panel (JPP). The JPP’s June 2017 report suggested that Rule for Courts-Martial 1103A as proposed by Annex 1 and Rule for Courts-Martial 1113 as proposed by Annex 2 be further revised to include the following: “Prior to a decision to permit examination of material described in this subparagraph, notice and an opportunity to be heard shall be given to any person whose records are about to be examined and to appellate counsel.” The report making that recommendation is available at http://jpp.whs.mil/​Public/​docs/​08-Panel_​Reports/​07_​JPP_​VictimsAppRights_​Report_​Final_​20170602.pdf. The Department invites public comment on the JPP’s proposal.

R.C.M. 1103A allows appellate authorities – including counsel for the Government divisions and the appellant – to examine sealed matters attached to a record of trial. These sealed matters could – under increasingly rare circumstances – include private information pertaining to an alleged victim (such as mental health records) that were reviewed in camera but not otherwise disclosed at trial.

Last year the Air Force Appellate Government Division asked CAAF to prevent appellate defense counsel from reviewing such material, but CAAF rebuffed the request (discussed here and here). The JSC then proposed changing the R.C.M. to prevent such review (noted here). I submitted a public comment (discussed here) opposing the change. The change persists in this new round of proposals, and the JSC does not offer any rationale for it.

The House Armed Services Committee recently met to debate the National Defense Authorization Act for 2018. Congressman Steve Russell (R-OK) (a retired Lieutenant Colonel in the Army) had some harsh words for critics of the UCMJ. In the course of a debate over a proposal to make court-martial panel selection random (taking from commanders the responsibility to select the members), Congressman Russell said this:

And again, I go back, Mr. Chairman. Honestly, I didn’t know that I was such a knuckle-dragger, that I was so closed minded, that I was a rapist, that I was a murderer, that I was a sexual assaulter, that I were all of these things until I came to Congress and often heard from my colleagues how horrible I was when I was in uniform as a commander and how incapable I was in being able to do justice and make decisions. But now I’ve learned that maybe I just didn’t realize who I was. What I would suggest is that, once again, we do not break the Uniform Code of Military Justice. It is the glue that holds our discipline and good order together.

Here’s a clip (link if video does not show below):

And here is a link to his full remarks in context.

Our #1 Military Justice Story of 2016 was the Military Justice Act of 2016. The Act makes the most significant changes to the UCMJ since the Military Justice Act of 1983. The changes won’t take effect until President Trump establishes an effective date that need only be no later than January 1, 2019.

Today a reader forwarded me the proposed revision to the MCM. The DoD will soon publish this proposal on the internet (pursuant to this approval dated Monday). The proposal includes the following three documents (each item is a link to the document hosted on CAAFlog):

A draft Executive Order indicating an effective date for the MJA of January 1, 2019.

Annex 1 to the draft Executive Order, making changes effective immediately once the Order is signed (at a glance, these change appear to be the JSC proposed changes for 2017 discussed in this post, about which I submitted a public comment discussed in this post).

Annex 2 to the draft Executive Order, making changes incorporating the MJA. Annex 2 is 619 pages and reproduces Parts I-V of the MCM in their entirety. It also includes an Appendix 2.1 (PDF page 605) containing non-binding disposition guidance for charges, and an Appendix 12A (PDF page 611) listing Presidentially-prescribed lesser included offenses.

This story in The Hill alerted me to the “Protecting the Rights of IndiViduals Against Technological Exploitation Act” (PRIVATE Act), H.R.2052, which passed the House with no nay votes on May 24, 2017, and has been referred to the Senate Armed Services Committee. A separate (but identical) bill was also introduced in the Senate (S.1296).

The bill proposes a new Article 117a of the UCMJ to prohibit the “wrongful broadcast or distribution of intimate visual images.” The text of the proposed article – which seems to avoid the problems I identified in the new Article 1168, U.S. Navy Regulations – is after the jump.

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Our #1 Military Justice Story of 2016 is the Military Justice Act of 2016, passed as Division E of the National Defense Authorization Act for Fiscal Year 2017 and signed into law by President Obama on December 23, 2016.

A bookmarked PDF of the MJA is available here.

The Act was the product of the Military Justice Review Group, an internal DoD working group created by the Secretary of Defense to conduct a comprehensive review of the UCMJ. As an internal group the MJRG’s meetings and deliberations were closed to the public, and there was little subsequent public debate about the group’s 1,302 page report and legislative proposal. The House and Senate adopted the MJRG’s legislative proposal in differing degrees, and the final legislation was worked out in conference committee. It’s not everything the DoD wanted, but it’s pretty close, and it’s the most significant changes to the UCMJ since the Military Justice Act of 1983.

The changes won’t take effect until the President establishes an effective date that need only be sometime before January 1, 2019 (1st day of the 1st month two years after enactment). Yet while Congress gave the President up to two years to make the Act effective, it only allowed one year for revision of the Manual for Courts-Martial (perhaps in recognition of the fact that the White House has been painfully slow to act on draft executive orders forwarded by the Joint Service Committee).

Of course we’ll analyze the MJA in 2017, and we’ll keep reporting on developments in military justice for the eleventh year. Stay tuned.

The FY17 NDAA (link) – which includes major changes to the UCMJ (noted here) – has passed Congress and was sent to the President for signature on Wednesday.

The long awaited report of the conference committee considering the National Defense Authorization Act for Fiscal Year 2017 was just released. It is available here: https://rules.house.gov/conference-report/s-2943

The conference version of the NDAA includes a great many significant changes to the Uniform Code of Military Justice. In particular, the legislation adopts many – but not all – of the changes proposed by the Military Justice Review Group.

Some significant notes:

• The conference version does not eliminate members sentencing in non-capital cases. Instead, § 5182 amends Article 25 to give the accused the option to elect sentencing by members (when trial was before members) after the findings are announced.

• § 5164 of the conference version amends Article 20 to state that “a summary court-martial is a non-criminal forum. A finding of guilty at a summary court-martial does not constitute a criminal conviction.”

• § 5205 modifies a staff judge advocate’s pretrial advice to require only a probable cause determination rather than the current conclusion that “the specification is warranted by the evidence.”

• § 5330 modifies Article 66 to require automatic review by the courts of criminal appeals only in cases that include death, dismissal, a dishonorable or bad-conduct discharge, or confinement for two years or more. In cases involving confinement for more than six months or more (but less than two years) an accused may petition for review.

Edited to add: • § 5330 also preserves the requirement that a CCA “may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as the Court finds correct in law and fact and determines, on the basis of the entire record, should be approved.”

• § 5301 modifies Article 56 to allow the prosecution to appeal a sentence on the grounds that “(A) the sentence violates the law; or (B) the sentence is plainly unreasonable.”

• § 5301 modifies Article 56 requires a sentence adjudged by a military judge alone to be segmented (confinement and fine only) by offense. Where sentencing is by members, the court-martial will continue to adjudge a single sentence for all offenses.

As the Military Justice Act of 2015 works its way through Congress, a Legal Memorandum from the Heritage Foundation considers the proposed changes in the context of history, contemporary practice, and the press to modernize:

Paul Larkin and Charles “Cully” Stimson, The 2015 Report of the Military Justice Review Group: Reasonable Next Steps in the Ongoing Professionalization of the Military Justice System

[Update:  this event has been postponed due to weather issues.  We will update the post and provide a link to the new flyer when it is available]  On January 28, 2016, from 6:00 to 8:00 pm, there will be a panel discussion of DoD’s proposed military justice legislation resulting, in part, from the work of the Military Justice Review Group (MJRG).  The panel is co-sponsored by the American Bar Association’s Standing Committee on Armed Forces Law, in cooperation with the ABA’s Standing Committee on Law and National Security, and the Judge Advocates Association.  See details here.

I have not heard any postponement due to weather. [Update:  Well that’s not true now.]

Location:  Founders Room, Offices of Dentons US LLP, 1900 K Street, Washington DC, 20006

Moderator: The Honorable James Baker, former Chief Judge, U.S. Court of Appeals for the Armed Forces

Panelists:

  • The Honorable Andrew Effron, former Director of the MJRG
  • Col. William N. Pigott, Chair, DoD Joint Service Committee on Military Justice
  • LtCol Julie Huygen, U.S. Air Force representative, Joint Service Committee on Military Justice
  • COL Walt Hudson, U.S. Army representative, Joint Service Committee on Military Justice
  • CAPT Warren A. Record, U.S. Navy representative, Joint Service Committee on Military Justice

There is no charge for this event, but the Committee asks that you please email Susan.Koz@americanbar.org to RSVP.

From the Code Committee, here:

This year’s meeting will be held at the Courthouse of the United States Court of Appeals for the Armed Forces, 450 E Street, NW, Washington, DC 20442-0001, at 10:00 a.m. on Tuesday, March 1, 2016. The agenda for this meeting will include consideration of proposed changes to the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, and other matters relating to the operation of the Uniform Code of Military Justice throughout the Armed Forces.

 

The National Defense Authorization Act for Fiscal Year 2016 (S.1356) was signed into law by the President last week.

A prior version of the legislation (H.R.1735) was vetoed late last month (discussed here).

The bill enacted last week contains 15 military justice provisions. They are identical to the provisions that were in the vetoed version of the bill. I discussed those provisions in this post.

That’s the word from this Poltico report:

IT’S VETO DAY AT THE WHITE HOUSE: The White House has taken any drama out of whether President Barack Obama will veto the National Defense Authorization Act, as he has vowed to do: It has announced in his daily schedule that he’ll veto the bill this afternoon.

The fiscal 2016 NDAA will be just the fifth veto of Obama’s seven-year presidency and will spark a Republican offensive against him for politicizing the military in a budget fight. The House has already set up a veto override vote for Nov. 5, although enough Democrats opposed the bill earlier this month to sustain the veto.

I discussed the military justice provisions in the FY16 NDAA in this post.

Update: Veto. Washington Post report here.